Five lawmakers sue Gov. Greg Abbott over $295 million contact tracing deal

“The Texas Constitution requires a separation of powers, and that separation leaves policy-making decisions with the Texas Legislature,” argues a lawsuit from five of the Legislature’s most conservative members.

Five of the Texas Legislature’s most conservative members are suing Gov. Greg Abbott and state health officials, claiming Texas leaders overstepped their bounds when they awarded a major contract for tracking Texas’ coronavirus outbreak to a little-known technology firm.

For months, lawmakers have criticized the $295 million deal with Frisco-based MTX Group, arguing it was inked too quickly, without an opportunity for the Legislature to properly vet it. Critics say the company, which beat out several better known competitors, doesn’t have the experience to handle the monumental task of tracking down those who have come into contact with people carrying the novel coronavirus — a process experts say is essential for mitigating the spread of the disease.

In a lawsuit filed Monday, Republican state Reps. Mike Lang, Kyle Biedermann, Bill Zedler, Steve Toth and state Sen. Bob Hall asked a Travis County judge to void the controversial contract, arguing that both the selection process and length of the contract were improper.

“The request for proposal for the contract was inadequate, the contract bid process was a sham, and the contract impermissibly exceeds two years,” the lawmakers said in the suit.

Under state emergency laws, triggered by a March 13 disaster declaration from Abbott, state officials have broader authority than usual to make policy decisions. But in this case, the lawsuit argues, officials went too far and failed to ensure proper competitive bidding as required by law.

“The Texas Constitution requires a separation of powers, and that separation leaves policy-making decisions with the Texas Legislature,” the lawsuit argues. “The Governor cannot establish new state policy, issue a $295M contract to [implement] that policy, and ignore or suspend state statutes just by claiming ‘It’s a disaster.’”

Experts say contact tracing — the process of tracking down people who may have come into contact with a COVID-19 patient and persuading them to self-isolate — is an essential part of mitigating the spread of the novel coronavirus. But slow testing results and a limited workforce have stymied efforts in Texas.

With Texas’ biennial Legislature out of session until January, Abbott has leaned heavily on his emergency powers and executive authority to make pandemic policy, issuing more than 20 executive orders on topics ranging from hospital reporting data to mandatory face coverings.

The lawmakers argued in their lawsuit this week that in lieu of calling lawmakers back to consider coronavirus response, Abbott “appears determined to sit in the Governor’s mansion and issue laws… in a clumsy and inconsiderate manner.”

“Using a serious but manageable disease threat which some refer to as ‘the new normal’ and authorizing multiple-year contracts entrenching a new bureaucracy and effective government program is not an appropriate use of the Governor’s power,” they wrote, adding that Abbott could have called a special session to allow lawmakers to weigh in.

MTX declined to comment on the lawsuit, and Abbott’s office did not return a request for comment. But a spokesman for the governor has defended the deal, saying MTX had experience doing similar work in other states and that the contract was federally funded. Health officials have also said that MTX had the best bid at the lowest price.

The governor’s legal authority has been challenged a number of times during the emergency, so far without much success.

Last month, the Texas Supreme Court tossed out a challenge to Abbott’s emergency powers, citing procedural issues with the case which had been brought by some of the lawmakers who sued the governor this week.

But in an accompanying opinion, Justice John Devine wrote that he sees some limits to the governor’s power to make policy even during times of emergency — and suggested that he thinks Abbott may have overstepped them.

“In these most atypical times, Texans’ constitutional rights have taken a back seat to a series of executive orders attempting to unilaterally quell the spread of the novel coronavirus,” Devine wrote. “That can’t be right.”

Several of the lawmakers suing the governor are members of the Texas House Freedom Caucus. Their attorney is Warren Norred, a member of the State Republican Executive Committee, who months ago represented Shelley Luther, a Dallas salon owner who became a cause célèbre on the right after she defied state and local emergency orders and refused to close her business.